Justice Watch: The Alliance for Justice Blog

August 2009

Alliance for Justice deeply mourns the passing of Senator Edward Kennedy (D-MA). He dedicated his life to the best of America and its values, embodying the fight for justice and equality. Senator Kennedy gave his voice to the voiceless and wielded his power for the powerless. He leaves behind a grateful nation and a legacy that will persist for generations to come.

Alliance for Justice owes a particular debt of gratitude to Senator Kennedy for his extraordinary work on the Senate Judiciary Committee. From fighting for the confirmation of Justice Thurgood Marshall to turning the tide against Robert Bork to urging the passage of the Voting and Civil Rights Acts–arguably the most seminal legislation of the 20th Century—to standing up for the Constitution and the rule of law, Senator Kennedy was not only the lion of the Senate, but the lion of the Judiciary Committee, as well.

In 2007, in a moment that was emblematic of the kind of passion and commitment Senator Kennedy brought to any activity, large or small, he hosted a screening of our film, Quiet Revolution. Such a small thing, but instead of coming in, saying a few words, and going home, he delivered an impassioned speech. That’s his way. Not only did he recognize his duty to serve, he went above and beyond that duty. From education to health care to gender equality to defending our courts, Senator Kennedy could always be counted on as an essential ally. Now we must honor his memory by not only reflecting on his legacy but by continuing to advance the values and causes he so valiantly championed during his unparalleled career.

We have lost a formidable ally, a generous friend and a constant inspiration. But, in the words of Senator Kennedy himself, ‘the work goes on, the cause endures, the hope still lives, and the dream shall never die.’

Two weeks ago we asked about the release of the Office of Professional Responsibility’s (OPR) report on the torture memos.Again. Many hoped that the report would be released today in tandem with the CIA inspector general’s report, but, alas, Attorney General Holder’s statement indicated that it might be some time before we see the OPR report. The absence of this report, then, keeps the focus on the actions of low-level operatives detailed by the IG report (released today by court order), rather than looking up the chain of command to people like lawyers Jay Bybee, John Yoo, and Steven Bradbury who designed the legal framework for the torture regime.

While Mr. Holder did announce the appointment of a special prosecutor today, the scope of the prosecutor’s mandate and discretion is much too narrow. As Alliance for Justice President Nan Aron observed:

We need a full-scale investigation presided over by a special prosecutorwho can operate without artificial constraints and who has the discretion tofollow the facts where the evidence leads, including up the chain ofcommand. No blinders should be put on a special prosecutor, and noartificial barrier constructed to shield certain perpetrators from evidence of acrime.

Any investigation must reject blame-shifting and includethe high-level officials who sanctioned and attempted to justifytorture, not just the individuals who carried it out. We cannottolerate another investigation that ignores the lawbreaking of seniorgovernment officials without addressing the systemic problems thatled our country astray in the first place.

What is it about accountability that inspires such antipathy in certain Senate Republicans? According to Congressional Quarterly (subscription required), nine Republicans are urging Attorney General Eric Holder “not to investigate CIA interrogators who might have exceeded Justice Department legal guidance on acceptable techniques.” But accountability and investigation are key if we are to put this sad chapter behind us, rather than trying to sweep it into the dustbin of history. The letter’s signatories express concerns about a “chilling effect” on United States intelligence activities. But shouldn’t torture, and the culture that led to its commission be not just chilled, but stopped altogether? The argument that holding those who break the law responsible for their actions will somehow damage American intelligence activities is little more than a smokescreen of fear mongering.

The Republicans make specific reference to Justice Department legal guidance, which raises another important point: the investigation should not and cannot stop with the intelligence community; it must extend to the lawyers who twisted the law and Constitution to structure these so-called guidelines in the first place. Or, as Senator Feingold put it in a letter written last month, “While allegations that individuals may have even gone beyond what was justified by those now-public OLC memos are extremely disturbing, we should not lose sight of the fact that the program itself — as authorized — was illegal, not to mention immoral and unwise.”

Yesterday, the Blog of Legal Times reported that Dawn Johnsen, President Obama’s nominee to head the DOJ’s Office of Legal Counsel, will “teach a seminar this fall at Indiana University’s Maurer School of Law. She will commute weekly from Washington to Bloomington, Ind., while she continues to wait for confirmation, said Debbie O’Leary, a spokeswoman for the law school.”

Meanwhile four people were arrested for protesting law professor John Yoo’s return to the University of California Berkeley Boalt Hall School of Law. Yoo, author of the infamous torture memos, was Deputy Assistant Attorney General in the Office of Legal Counsel – the office that is still lacking a leader because of Dawn Johnsen’s stalled nomination.

According to the AP, “Christopher Edley Jr., Berkeley’s law school dean, has rejected calls to dismiss Yoo, saying the university doesn’t have the resources to investigate his Justice Department work, which involved classified intelligence.”

For very different reasons, neither Professor Johnsen nor Professor Yoo should be back in the classroom this fall. Attorney General Holder needs to call for a full-scale investigation of the torture memos so that we can discover what, if any, action should be taken against Yoo, and the Senate needs to confirm Dawn Johnsen to head the DOJ’s Office of Legal Counsel so that the department can get back on track.